EMPLOYMENT APPEALS TRIBUNAL
Argos Limited T/A Argos
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. W. O'Carroll
Mr D. Mcevoy
heard this case in Limerick on 28 July 2014 and 22-23 October 2015
Ken Stafford, 7 Castletown Court, Celbridge, Co. Kildare
Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Unfair dismissal was claimed after service with the respondent from early 2003 to mid-2012. The claimant was a store manager. It was alleged that allegations about his actions had led to an unfair and highly defective investigation which had not revealed anything constituting gross misconduct or even conduct deserving disciplinary action. It was also alleged that the claimant had not been given sufficient access to the evidence used against him by the respondent and that the respondent had exaggerated the allegations against him. It was claimed that the claimant should be fully compensated for loss incurred since his dismissal.
The respondent contended that the claimant had been fairly dismissed for gross misconduct, arising from events that had taken place in the respondents’ store in October 2011, after investigation, dismissal and appeal all of which had been conducted with procedural correctness. SW (an investigating manager with the respondent) had gone to the claimant’s store for another reason but saw that CCTV had been diverted to linger on individuals in the store. Concerned for possible implications for the respondent’s name, the respondent dismissed the claimant.
The Tribunal viewed CCTV footage and heard testimony from SW and two other witnesses from the respondent as well as from the claimant himself. The testimony was detailed and was subjected to very thorough cross-examination. There were then extensive submissions on behalf of the parties.
However, the Tribunal did not accept that the dismissal was a disproportionate sanction or response to the allegations against the claimant. The testimony of the claimant was not found to be sufficiently credible. References to the passage of time between the incidence of the claimant’s actions, and a formal Investigation and Disciplinary Report, offered as a justification by the claimant for lack of recollection, did not convince the Tribunal that the process was affected by any procedural unfairness. The Tribunal in this respect is influenced by two previous Determinations of the Tribunal, Looney & Co. Ltd. v Looney UD 843/84, referenced by the respondent’s representative, where the Tribunal held that
it is not for the Tribunal to seek to establish the guilt or innocence of the claimant nor is it for the Tribunal to indicate or consider whether we in the employers’ position would have acted as he did in his investigation or concluded as he did or decided he did. ... our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided to set this up as a standard against which his actions and decisions be judged.
The earlier case of Hennessy v Read and Write Shop UD 192/78 , is also a leading authority for the proposition that the standard to be applied is the reasonableness of the employers’ decision
In deciding whether or not the dismissal of the claimant was unfair we applied the test of reasonableness to the nature and extent of the enquiry made by the respondents prior to the decision to dismiss the claimant. We applied the same test to the conclusion arrived at by the respondent that on the basis of information resulting from such inquiry the claimant should be dismissed.
The claimant’s limited apology, contained and set out in the record of the Disciplinary Hearing dated 25th May 2012, attended by the Claimant’s union representative, did not persuade the Tribunal that the acts complained of precluded further acts for which he could be held responsible. The Tribunal did accept the argument that the respondent had a legitimate interest in guarding against its own potential exposure if it came to be known amongst the public how the CCTV had been used. Given all the facts as opened to the Tribunal and applying the principles enunciated in the two leading cases as cited, the dismissal was found to have been within the range of reasonable responses open to the respondent.
There was no dissenting opinion in the Tribunal’s finding that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal